Saturday, June 5, 2010

Read and Ponder for Yourself

I vaguely recall from law school a visit (I think he gave a talk) by now Harvard Law Professor Mark Tushnet; I also vaguely recall editing his talk for publication in our law review. Well, his daughter is now in the news at this N.Y. Times link. She is a new Catholic. Read and ponder for yourself the linked article. Sometimes it is good not to give a knee-jerk, immediate blog reaction to an article, but to let readers absorb it first. Your comments, as usual, are welcome.

Update: Prof. Mark Tushnet gave the Second Annual Brendan Brown Lecture on March 13, 1987, at my law school. He was then a professor at Georgetown. The lecture title was "Religion and Theories of Constitutional Interpretation." It was printed in the Loyola Law Review (New Orleans), Vol. 33, No. 2, Summer 1987, pp. 221-40. So there was a Catholic connection of sorts at least as far back as 23 years ago, if not earlier. I quote his conclusion:

This discussion completes my survey of interpretive approaches to the religion clauses. The conclusion should be clear, and disquieting. None of the available interpretive approaches yields satisfactory results. They all license and prohibit too much interaction between religion and government. It would be nice if I could conclude by offering my own interpretive approach to resolve all these difficulties, but I cannot. As I have argued elsewhere, religion cannot comfortably fit into our constitutional scheme because it is a form of life whose essential characteristics cannot be reduced to the rationalist premises of our legal system.One could of course respond to this that religion should therefore be read out of the Constitution. Alternatively--and on this note I conclude--one could respond that the Constitution's rationalism ought to be questioned.